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HomeMy WebLinkAbout88-634 NemecMichael A. Nemec, Esquire 475 Union Trust Building 501 Grant Street Pittsburgh, PA 15219 Dear Mr. Nemec: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783-1610 ADVICE OF COUNSEL October 3, 1988 Re: Attorney, PUC, Representation, Section 3(e), 88 -634 This responds to your letter of September 2, 1988, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law upon termination of your employment with the Pennsylvania Public Utility Commission. Facts: After stating that you were employed as an administrative law judge with the Pennsylvania Public Utility Commission, hereinafter PUC, until August 30, 1988, you advise that you are now engaged in the private practice of law. You cite Section 3(e) of the Ethics Act and request clarification as to the Commission's view on the restrictions that Section 3(e) would impose upon your activities as a practicing attorney. Discussions: Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Cmwlth. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982) deals with the applicability of Section 3(e) of the Ethics Act to attorneys in the regulation of their practice of law. However, you seek clarification of the question of the applicability of the Ethics Act to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law. In light of the recent decision in Pennsylvania Public Utility Commission Bar Association, supra, where the Court held that Section 3(e) of the Ethics Act, 65 P.S. 403(e), was an impermissible intrusion upon the Supreme Court's authority to Michael A. Nemec, Esquire October 3, 1988 Page 2 regulate an attorney's conduct, the State Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3(e) of the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct before the PUC in particular, the agency or entity with which you were associated, would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 -1332. In this note, the Court indicates that any activity in which the attorney purports to render professional services to a client may only be regulated by the Supreme Court. The State Ethics Commission, therefore, must conclude that to the extent that you would represent a client, as a lawyer, before the PUC or otherwise, Section 3(e) of the Ethics Act would not operate to bar such activity. If, however, the activities that you intend to undertake before the PUC -- the governmental body with which you have been associated while employed by PUC -- do not fall within the category of the "practice of law ", the prohibitions of Section 3(e) of the Ethics Act might be applicable. Activities which might be considered, by the Commission, not to constitute the "practice of law" or to be undertaken in the capacity as lawyer - client, might include activities such as lobbying and negotiating contracts. However, it is assumed, for the purposes of this Advice, that you intend to undertake these activities in the capacity of lawyer- client, that these activities would constitute the practice of law, and that the provisions of Section 3(e) of the Ethics Act, pursuant to the mandates of the Supreme Court's ruling would, therefore, be inapplicable. In any event, you should be advised that your activity, even if Section 3(e) of the Ethics Act were to be applicable, would not regulate your conduct, except with respect to the PUC- -the "governmental body" with which you are "associated" while employed by the PUC. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the PUC would not be restricted by Section 3(e) of the Ethics Act in any event. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct Michael A. Nemec, Esquire October 3, 1988 Page 3 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: Section 3(e) of the Ethics Act does not restrict your representation or your activities, as outlined above, insofar as those activities constitute the practice of law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code §2.12. cerely, t-uJv Vincent . Dopko, General Counsel